Documentos de Académico
Documentos de Profesional
Documentos de Cultura
Plaintiff,
v. C. A. No. 08-126-SLR-MPT
ABBOTT LABORATORIES,
Defendant.
I. INTRODUCTION
C'Ethypharm") filed this action against Abbott Laboratories ("Abbott").1 Both parties are
manufacture of fenofibrate products for marketing and sale in the United States. Abbott
is alleged to have interfered with Ethypharm's licensee's marketing and selling of its
fenofibrate product in the United States. Ethypharm asserts antitrust claims under
sections 1 and 2 of the Sherman Act as well as several common law claims and a claim
for sham litigation. Currently before the court is Ethypharm's "Motion to Proceed on
Certain Discovery Matters Directly under the Federal Rules of Civil Procedure Rather
II. BACKGROUND
2D.1.118.
fenofibrate product called Antara. 3 Because Ethypharm does not directly sell and
distribute Antara in the United States, it entered into an exclusive license agreement
its own brand name fenofibrate product, TriCor, in the United States. 5 Laboratoires
sell TriCor in the United States. s Abbott acquired Fournier from Solvay
licenced Ethypharm's underlying patent and intellectual property rights and agreed to
obtain FDA approval for Antara and market the drug in the U.S. s
Antara, Reliant provided notice of a regulatory filing and certification to Abbott. Abbott's
written response was "a thinly-veiled threat to bring suit.'J9 Reliant reacted to that threat
by filing an action in this court on June 1, 2004, captioned Reliant Pharmaceuticals, Inc.
against Abbott and Fournier seeking a declaration of non-infringement and that the
Fournier patents under which Abbott was manufacturing TriCor were unenforceable due
action, Ethypharm alleges that the counterclaim was a sham to further restrain Antara's
Antara received FDA approval in late 2004 and Reliant began sales and
distribution of the drug in early 2005. 13 The Reliant litigation was settled in April 2006
terms of the STS form the basis of Ethypharm's antitrust allegations in this action. 15
Under the STS, Reliant was permitted to sell Antara without risk of infringement. In
exchange, however, Reliant was not permitted to sell the U.S. rights to Antara to a
and was restricted or delayed in its ability to extend the Antara product line by launching
In mid-2006, Reliant sold its exclusive U.S. rights to the Antara product. 17
Because of restrictions in its agreements with Abbott, however, Reliant sold its rights to
10/d.
11 Id. at 11115; D.1. 128 (Conrad Decl.), Ex. B (Civ. No. 04-cv-00350-KAJ, D.1. 45 (Joint Answer
and Counterclaims».
12 D.1. 26 at11119.
13/d. at 1l1l7, 102.
14 The Reliant litigation was dismissed by stipulation of the parties on April 19, 2006. See Civ. No.
04-cv-00350-KAJ, D.1. 110.
15 See, e.g., D.I. 1 at 11118.
16 D.1. 26 at 1l1l10, 71.
17 Id. at 1111.
3
a small company with limited resources. 18 Ethypharm states that Oscient subsequently
closed on February 15, 2010. 21 Ethypharm maintains that as a result of the acquisition
of Solvay and its subsidiaries, including Fournier, Abbott has sufficient legal control over
Fournier such that Ethypharm is entitled to certain discovery pursuant to the Federal
Rules of Civil Procedure, rather than having to pursue that information through the
In this action, Ethypharm asserts antitrust claims under sections 1 and 2 of the
Sherman Act and common law claims. Additionally, Ethypharm brings a claim of sham
against Ethypharm's licensee in the Reliant litigation. In connection with these claims,
Ethypharm asserts that Abbott, in concert with Fournier, engaged in inequitable conduct
that the agreements between Abbott, Fournier, and Reliant represented the settlement
18 D.1. 26 at1112.
19D.1.119at4.
20 Id., Ex. D.
21 D.1. 126 at 113 ("On or around February 15, 2010, Abbott Laboratories acquired all of the stock
in Solvay Pharmaceuticals SA ('Solvay'), a Belgian company that was the direct or indirect parent to a
number of subsidiary companies. . .. In connection with that acquisition, Abbott Laboratories became the
indirect parent of many of Solvay's subsidiaries.").
22 See D.1. 421176; D.1. 95 at 17·18.
previously settled the claims raised in the Amended Complaint in the context of a 2005
Though its motion, Ethypharm seeks an order from this court requiring Abbott to:
(1) produce a witness pursuant to Fed. R. Civ. P. 30(b)(6) prepared to testify with
knowledge of both Abbott and certain of its wholly-owned subsidiaries and/or affiliates
located overseas, including Fournier;24 and (2) produce for deposition certain current
Fed. R. Civ. P. 30. 25 "Under the Federal Rules of Civil Procedure [and Third Circuit]
Ethypharm frames the issue presented by its motion as "whether Abbott has
(including Fournier), such that Abbott is required to produce certain witnesses and Rule
23
0.1. 42 at 22, Affirmative Defense No. 12.
24 Ethypharm represents that the anticipated topics for a Rule 30(b)(6) deposition include the
alleged anticompetitive agreements at issue in this case, the testing of certain fenofibrate technology in
the context of the infringement litigation, the alleged inequitable conduct in connection with the TriCor
patents, the alleged sham litigation, and the settlement agreement between Ethypharm and Fournier in
2005 that Abbott asserts as a defense to this litigation. Additionally, Ethypharm would seek information
regarding the document destruction procedures, document collection efforts, and privilege logs of Abbott's
subsidiary in light of Fournier's failure to provide any non-privileged documents from certain custodians.
0.1. 119 at 16.
25 In its opening brief, Ethypharm states that it seeks to depose Frederic Cren, a current Fournier
employee, and that it may seek to depose other current employees of Abbott-affiliated entities, identifying
Michel Hubert of Abbott Products SAS, Frederic Jacotot of Abbott Products Operations AG, and Susan
Coles of Fournier. 0.1. 119 at 19 n.4. In its reply brief, however, Ethypharm states that it "identified a
single, current overseas employee that it wishes to depose-Frederic Cren" and reiterates that it "has not
yet made a determination as to whether it needs to depose" those other three individuals. 0.1. 129 at 9 &
9 n.4.
26 Sempier v. Johnson & Higgins, 45 F.3d 724,734 (3d Cir. 1995).
270.1. 119at2.
Abbott's legal control over Fournier. According to Ethypharm, because Abbott allegedly
has the legal right to obtain the discoverable information at issue as a result of its
acquisition of Fournier, Abbott has the requisite control of Fournier and must produce
the information sought by Ethypharm under the Federal Rules of Civil Procedure, rather
than requiring Ethypharm to seek that information pursuant to the Hague Convention.
Abbott contends the issue is not whether Ethypharm may take depositions under
the Federal Rules of Civil Procedure or must take them under the Hague Convention.
Instead, Abbott maintains that the issue is "whether either of the two procedures for
compelling depositions that exist under the federal rules-a subpoena under Rule 45 or
a notice under Rules 30(b) and 37(d}(1}(A)(i)-can be used here to compel the
deposition of the individuals Ethypharm has identified."28 Abbott answers its question in
the negative. It contends that the foreign nationals at issue are not asserted to be
subject to the subpoena power of United States courts, have not been served with
managing agents of any party to this action. Because Ethypharm does not set forth any
other provision of the Federal Rules under which it contends that the depositions it
seeks may be compelled, Abbott maintains that Ethypharm's motion should be denied.
IV. DISCUSSION
legal control over Fournier and, consequently, is required to provide the information
28
0.1. 125 at 1.
sought by Ethypharm's motion pursuant to the Federal Rules of Civil Procedure. In the
Third Circuit, control is defined as the legal right to obtain discoverable information on
demand. 29 Based on the following facts, Ethypharm argues that Abbott meets that
control requirement.
SEC filings, a press release and presentation by Solvay, and Abbott's post-acquisition
control over Fournier's discovery in this case demonstrate Abbott's legal control over
Fournier.
teleconference with the court that Fournier had been acquired by Abbott and was now a
Fournier is owned. 31
29 See Gerling Int'llns. Co. v. Comm'roflntemal Revenue, 839 F.2d 131, 140 (3d Cir. 1988).
30
0.1.95 at 16:1-5 (Teleconference Tr., May 17, 2010) ("Fournier ... is an indirect subsidiary in
the sense that there are companies in between Abbott Labs and Fournier, but substantially what was
Fournier Pharmaceuticals is now, through the chain of companies, owned by Abbott."); id. at 26:17-18 ("[I]t
was Solvay that owned Fournier and that sold Fournier to Abbott."); id. at 27:21-25 ("There is a Solvay
parent, a conglomerate and one arm of that, I think is the best way I understand it or could describe it
came to Abbott, and that is the pharmaceutical arm with I think the most significant entity or entities being
Fournier entities.").
31 0.1. 126 at ,-r 3 ("On or around February 15, 2010, Abbott Laboratories acquired all of the stock
in Solvay Pharmaceuticals SA ('Solvay'), a Belgian company that was the direct or indirect parent to a
number of subsidiary companies. . .. In connection with that acquisition, Abbott Laboratories became the
indirect parent of many of Solvay's subsidiaries."); id. at,-r 4 ("Laboratories Fournier SA was one of the
Solvay subsidiaries of which Abbott became the indirect parent as a result of the February 15, 2010
acquisition. At the time of the acquisition, Laboratories Fournier SA was an indirect subsidiary of Solvay
through the following chain of intermediate corporations: (a) Solvay was the direct parent of Sodufa BV,
an entity organized under the laws of and with its principal place of business in the Netherlands; (b)
Sodufa BV was the direct parent of Vivasol SNC, an entity organized under the laws of and with its
Next, Ethypharm points to Abbott's SEC filings as demonstrating its control over
Abbott's Form 10-0 for the quarterly period ended March 31,2010, the company noted
its February 2010 acquisition of Solvay's pharmaceuticals business and that "Abbott
acquired control of this business on February 15, 2010 and the financial results of the
date."32 Ethypharm also states that the financial results of the entities acquired in the
filing. The provisions of the Stock and Asset Purchase Agreement (the "Purchase
Agreement"), filed as an exhibit to Abbott's Form 10-0 for the quarterly period ended
September 30,2009, purportedly demonstrates the scope of the legal control that
Abbott holds over the entities acquired in the Solvay transaction. The Purchase
Agreement recites that Abbott acquired legal control over all of Fournier's intellectual
property, patents, and business information relating to TriCor products sold in the U.S.
Abbott's conduct with respect to Fournier's discovery after it acquired that company.
principal place of business in France; (c) Vivasol SNC was the direct parent of Fournier Industrie et Sante,
an entity organized under the laws of and with its principal place of business in France; and (d) Fournier
Industrie et Sante was the direct parent of Fournier, an entity organized under the laws of and with its
principal place of business in France.").
32 D.1. 119, Ex. A (Abbott Laboratories, Quarterly Report (Form 10-Q), at 9 (May 4, 2010)).
33 See id., Ex. B (Abbott Laboratories, Quarterly Report (Form 10-Q), Ex. 2.1 at Ex. B (May 4,
2010)) (listing under "Acquired Assets," "all right, title and interest of the Asset Sellers in the Intellectual
Property listed on Schedule 1.1 (a) and any other Intellectual Property used or held for use primarily in the
Business"); id., Ex. Bat 43 (reciting under Section 3.13, titled "Intellectual Property," that Abbott acquired
"all Patents that are owned or co-owned by any of the Sold Companies," as well as "all Patents claiming
global products or global projects that are licensed in or licensed out (both exclusively or non-exclusively)
by any of the Sold Companies").
subpoena for documents under Fed. R. Civ. P. 45. Fournier's then counsel, Arnold &
Porter LLP ("Arnold & Porter"), accepted service of the subpoena on behalf of the
Fournier's document review was still in progress and that "Fournier will provide a letter
with its production that clearly explains what was searched for, in whose files, and what
its being produced."35 Ethypharm states that Fournier's attorneys did not meet that
obligation.
In a May 13, 2010 letter to the court, and during the May 17, 2010
teleconference with the court, it was reported that after Abbott's February 2010
acquisition of Fournier, Arnold & Porter ceased communication with Ethypharm and did
not produce the documents under sUbpoena. 36 Ethypharm asserts that instead of
Arnold & Porter producing Fournier's documents to Ethypharm, Arnold & Porter turned
over potentially responsive documents to Abbott's attorneys, Arnold & Porter was
terminated as Fournier's attorneys, and Abbott asserted legal control over Fournier's
34 Id., Ex. F (E-mail from James Cooper, former counsel to Fournier, to Shawn Naunton, counsel
to Ethypharm (Sept. 14,2009, 11 :14 AM)) (stating that Arnold & Porter had been authorized by Fournier to
accept service of Ethypharm's subpoena).
35 Id.. Ex. G (E-mail from Sonia Pfaffenroth, former counsel to Fournier, to Shawn Naunton,
counsel to Ethypharm (Dec. 8, 2009,10:17 AM)).
36
0.1. 95 at 5:20-8:6; 0.1. 119. Ex. H (letter from Gregory Williams, counsel to Ethypharm, to
Magistrate Judge Mary Part Thynge, at 2-3 (May 13, 2010)).
37 See 0.1. 119, Ex. I {Letter from James Cooper, former counsel to Fournier, to Stuart Senator,
counsel to Abbott (May 13, 2010)) ("Arnold & Porter completed its review for privilege and responsiveness
of the documents collected from the [Fournier] files of Ms. Coles and Mr. Cren before the Abbott purchase
of Fournier closed .... Arnold & Porter forwarded non-privileged, responsive documents from the files of
Ms. Coles and Mr. Cren to Patterson Belknap [counsel of record for Abbott] when the sale of Fournier
closed and Arnold & Porter was replaced as counsel."); Id., Ex. J {Letter from Mark Conrad, counsel to
Abbott, to Magistrate Judge Mary Pat Thynge, at 2 (May 14. 2010)) ("In the second half of February 2010,
production issues, and Fournier's privilege determinations and any resulting privilege
disputes. For instance, Ethypharm cites Abbott's May 14, 2010 letter to the court as
document discovery from Fournier when Abbott wrote "on behalf of defendant Abbott
Laboratories," that U[t]his letter sets forth the steps Fournier took, and Abbott continues
to take, in their attempt to ensure a [Fournier] production that is fully satisfactory to the
needs of this case."38 Ethypharm states that counsel of record for Abbott negotiated
and implemented the reconstruction of Fournier's backup tapes, the review of records
from additional Fourier custodians, the use of additional search terms for review of
demonstrates that Abbott not only controls Fournier for the purposes of discovery, but
that Abbott has exercised its control over Fournier where doing so purportedly
before Arnold & Porter had finished its review and production of these Fournier documents, substantially
all of Fournier's business was acquired by Abbott. Arnold & Porter then turned over to Abbott's counsel
documents of the four key custodians that Fournier had identified as likely to possess material responsive
to the subpoena."}.
38 Id., Ex. J. Ethypharm also points to the statement of Abbott's counsel during the May 17
teleconference that U[a]gain, if there is something that [Ethypharm] think[s] is insufficient, lets invite
Ethypharm and Abbott's counsel to sit down and talk about that in the context of the documents and show
us what there is" as demonstrating Abbott's control over Fournier and its responses to Ethypharm's
subpoena. D.I. 95 at 20:10-13.
10
press release of that same date that reported "the transaction provides for the transfer
of all employees of the pharmaceutical business [to Abbott] with their current
employment conditions .... "40 Ethypharm also maintains that a recent report that
confirmation of Abbott's legal control over the employees of its wholly-owned foreign
subsidiaries. 41
(including its employees) and that Ethypharm is, therefore, entitled to discovery under
Ethypharm maintains that litigating corporate parents are deemed to control the
current employees of their subsidiaries and affiliates for deposition purposes. It argues
that where the litigating corporate parent is based in the U.S. and its wholly-owned
subsidiary is not, the parent's control of the subsidiary's employees renders such
witnesses subject to deposition in the U.S. under the Federal Rules of Civil Procedure,
and obviates the necessity of seeking discovery of these witnesses under the protocols
39 D.1. 119, Ex. C (Solvay Group, Strategic refocus, Pharmaceuticals divestment, 8 (Sept. 28,
2009), http://www.solvaypress.com/static/wma/pdf/I/6/5/0/6/20090928_Presentation.pdf}.
40 Id., Ex. D (Press Release, Solvay Group, Solvay Opts for Strategic Refocus of Activities,
Decision to sell Pharmaceuticals Sector to Abbott (Sept. 28, 2009),
http://www.solvaypress.com/static/wma/pdfIl/6/5/0/5/20090928_EN. pdf}.
41 Id., Ex. E (Ben Rooney, Abbott to cut 3,000 jobs, CNNMoney.com (Sept. 21, 2009, 5:38 PM),
http://money.cnn.com/2010109/21/news/companies/Abbottjob_cutsl?section=moneyJatest} (reporting
that "Abbott Laboratories said ... that it will eliminate 3,000 jobs as part of a restructuring plan following its
acquisition of Solvay Pharmaceuticals" and that "the job cuts ... will be centered in Europe and will
primarily impact Solvay employees").
11
Frederick Cren.
In the specific section of its opening brief asserting the right to depose Cren.
Ethypharm cites only two cases. neither of which support its position. First. it cites
where the litigating party had the right to obtain their cooperation.'>44 In Aerocrine. the
court compelled the deposition of two foreign witnesses to occur in the United States.
regarding [a particular1 patent that included the following obligations: 'to testify in any
[Aerocrine1 to obtain and enforce said letters Patent in the United States when
Ethypharm has not alleged a contract with Cren. or any other potential deponents. that
43
267 F.R.O. 105 (D. Del. 2010).
44 0.1. 119 at 18; see also id. at 13 (citing Aerocrine in its general discussion of the standard of
"control" as "requiring [a] litigant to produce two foreign non-party inventors for deposition in the U.S. in
light of the litigant's legal right to control their presence").
45 Aerocrine. 267 F.R.O. at 111.
12
Ethypharm also quotes the statement from Power Integrations, Inc. v. Fairchild
Semiconductor Int'l, Inc. that "[p]ursuant to Rule 45(a)(1)(C), the test for the production
custody or control' of the person on whom the subpoena is served"47 as support for its
position. In that case, plaintiff served a subpoena seeking certain documents and
deposition testimony from a non-party to the action. 48 There, the court considered
whether a non-party domestic subsidiary was required to obtain documents from its
non-party foreign parent corporation. 49 It did not discuss a party's ability to depose a
In its general discussion of the issue of "control," and that issue's importance to
Ethypharm cites Twentieth Century Fox Film Corp. v. Marvel Enters., Inc. 51 as
support for that assertion. That case, however, does not provide support for the
assertion that "a request for witness testimony under Fed. R. Civ. P. 30" must be
47
233 F.R.D. 143, 145 (D. Del. 2005).
48 Id. at 144.
49 Id. (framing the issue as "whether a non-party, domestic subsidiary corporation is obligated to
obtain documents from its foreign parent corporation in response to a subpoena served on the non-party
subsidiary in the United States"); see also id. at 146 (noting Rule 45's recitation of "designated books,
documents or tangible things in the possession, custody or control" of the person being served and
discussing "control" with respect to production of documents).
5°0.1. 119at12.
51 No. 01 CIV. 3016(AGS)(HB), 2002 WL 1835439 (S.D.N.Y. Aug. 8,2002).
13
complied with when a foreign witness, employed by a non-party subsidiary of the party
to the action, is purportedly under the control of the party. In Twentieth Century Fox,
the plaintiff sought an order permitting an additional deposition beyond the limit
testify concerning certain documents. 52 The court framed the issue as "whether an
a witness prepared with the knowledge of both the entity that received the subpoena
The court explicitly stated that "a witness appearing pursuant to a Rule 30(b)(6)
notice has a unique status and testifies as the entity, not as an individual. 'A deposition
individual."'55 A 30(b)(6) witness is '''speaking for the corporation,' and this testimony
must be distinguished from that of a 'mere corporate employee' whose deposition is not
subpoena."56 Thus, Twentieth Century Fox does not support Ethypharm's request for
testimony pursuant to Fed. R. Civ. P. 30 with regard to Cren, or the other potential
521d. at *1.
53 Id. at *2 (emphasis added).
541d. (emphasis added).
55 Id. (emphasis added) (quoting Sabre v. First Dominion Capital, LLC, 01 Civ. 2145(BSJ) (HBP),
14
witnesses listed in Ethypharm's briefing.
must be obtained by subpoena" supports Abbott's analysis of the issue. Abbott argues
that although Fed. R. Civ. P. 30(a)(1) permits litigants to take the deposition of any
person or entity, the federal rules do not authorize the court to compel any such
subpoena under Rule 45." Rule 45(b)(2) provides for service of a subpoena in the
United States. Rule 45(b)(3) provides for service in a foreign country if the subpoena is
avers that there is no provision for service of a United States deposition subpoena on a
Abbott contends that the only other relevant provision for compelling a deposition
is Rule 37(d)(1)(A)(i). Rule 37(d) is titled "Party's Failure to Attend Its Own Deposition,
rule, the court may impose sanctions if "a party or a party's officer, director, or
managing agent" does not appear for a deposition "after being served with proper
notice." S8
Abbott argues that none of those rules apply here as none of the foreign
served with a subpoena to appear for deposition; none is a party to this litigation; and
57 See also 28 U.S.C. § 1783 ("A court of the United States may order the issuance of a subpoena
requiring the appearance as a witness before it. or before a person or body designated by it. of a national
or resident of the United States who is in a foreign country . ...") (emphasis added).
58 Fed. R. Civ. P. 37(d)(1)(A)(i).
15
none is an officer, director, or managing agent of Abbott. The court agrees with Abbott
that there is no textual basis in the federal rules for Ethypharm's argument that the
"control" test is applicable to the court's consideration regarding its request to depose
The court does not agree with Ethypharm's suggestion that as a result of the
Solvay transaction the employees of the acquired entities became employees of Abbott.
and a press release by Solvay noted previously herein.60 The Abbott press release
announcing certain employee terminations that Ethypharm cites, however, states that
the reductions "will primarily impact Solvay employees. "61 Moreover, declarations
submitted by Abbott with its opposition brief aver that after the Solvay transaction, the
"separate corporate status of [the acquired entities] ... was unaffected ... and
those separate corporate entities. 63 Because the court is not convinced that the
individuals named by Ethypharm are Abbott employees, the court need not consider
Ethypharm cites one case in which a federal court compelled the depositions of
59 See, e.g., D.1. 129 at 2 ("[T]he current and former Fournier employees that Ethypharm seeks to
depose are now also Abbott employees.") (emphasis in original).
60 D.1. 119, Ex. C, D.
61 Id., Ex. E (emphasis added).
16
foreign nationals employed by a foreign affiliate of a party to the litigation, Alcan
International Ltd. v. S.A. Day Manufacturing Co., Inc. 65 There, the defendant sought
subsidiary of the opposing party.66 Ethypharm draws the court's attention to the Alcan
Bel Fuse, Inc., the court stated that A/can focused "on the fact [that the individual] had
direct knowledge about the subject matter at issue. But that is plainly not the test."69 In
Newmarkets Partners, LLC v. Sal. Oppenheim Jr. & Cie. S. C.A. the court noted, citing
Alcan, that:
65
176 F.R.D. 75 (W.D.N.Y. 1996). Ethypharm cites A/can in its general discussion of control in its
opening brief (not in the specific section arguing that it is entitled to a Fed. R. Civ. P. 30 deposition of
certain individuals witnesses) and in the section of its reply brief arguing in favor of noticing a Rule
30(b)(6) deposition.
66 /d. at 77-78.
68 'd. at 79. Deposition testimony was not compelled for one of the individuals as he was no
longer employed by the foreign entity and, therefore, beyond its control. 'd. at 79 n.2. With regard to the
individual whose deposition was ordered, the court merely stated that he could be "relied upon to give
deposition testimony respecting the matters involved in the litigation." 'd. at 79 (emphasis and quotation
marks omitted).
69
242 F.R.D. 470, 477 (N.D. III. 2007) (citing A/can, 176 F.R.D. at 79).
17
possession of a foreign affiliate for purposes of Rule 34(a)(1) of the
Federal Rules of Civil Procedure. This Court declines to adopt such an
approach. 70
Although not citing A/can, the court in /n re Ski Train Fire of November 11, 2000
Kaprun Austria also declined to order the deposition of individuals from a non-party
certain employees of the subsidiary based on the argument that they were under
control of the litigant. The court rejected that request, stating that:
Unlike the language of Rule 34, Rule 30 of the Federal Rules of Civil
Procedure does not require a party to litigation to produce persons for
deposition who are merely alleged to be in the party's control. Rather, a
party or any other person can be noticed for deposition, and subpoenaed
if necessary. If the person sought for deposition is not within the
subpoena power of a United States court, then procedures according to
international treaty must be followed. 72
The court stated that "[t]here is simply no authority for the proposition that a corporate
party must produce for deposition fact witnesses who are not employed by, and do not
This court likewise declines to order the requested depositions, and therefore
denies Ethypharm's motion to compel Fed. R. Civ. P. 30 depositions of Cren, and the
70
2009 U.S. Dist. LEXIS 43435, at *4 n.1 (citing Alcan, 176 F.R.D. at 78).
721d. at *9.
73
2006 WL 1328259, at *9.
18
reasonable particularity the matters for examination," but the organization is only
Committee Notes accompanying the introduction of Rule 30(b)(6) recite that the rule
would:
One court noted that U[t]his comment evinces an intent to shift certain burdens to the
entity that is in a better position to obtain useful information.'177 With respect to Rule
30(b)(6) discovery, "[w]here a company fails to provide sufficient evidence why it would
not have access to the basic information of its affiliate(s}, that information is presumed
75Caryn Group II, LLC v. e.c. Seacrets, Inc., 265 F.RD. 235, 239 (D. Md. 2010).
76 Advisory Committee Notes to the 1970 Amendments to Rule 30, subdivision b(6) (citations
omitted).
77 S.C. Johnson & Son, Inc. v. Dial Corp., No. 08 C 4696,2008 WL 4223659, at *2 (N.D. III. Sept.
10,2008).
78 Caryn Group II, 265 F.RD. at 239 (citing Murphy v. Kmart Corp., 255 F.R.D. 497, 509 (D.S.D.
2009)).
19
Abbott makes much of the fact that this lawsuit concerns events that pre-date its
February 2010 acquisition of Solvay, and its indirect subsidiary, Fournier. It notes that
each of the subjects that Ethypharm would cover in a Rule 30(b)(6) deposition pertain
only to events that transpired when Abbott had no ownership interest in Fournier or any
other Solvay subsidiary. Those facts are not in dispute. Fournier is, however, now a
wholly-owned indirect subsidiary of Abbott and Abbott has not meaningfully contested
the evidence set forth by Ethypharm as demonstrating its control over Fournier. 79
Moreover, Abbott has not provided any "evidence why it should not have access to the
basic information of its affiliate(s)" since the close of the Solvay transaction.
... under Rule 30(b)(6)" but should not be able to compel "the testimony of foreign
nationals whose depositions cannot be obtained under the federal rules."80 Through its
under Rule 30(b)(6). Through that discovery vehicle, it seeks a witness prepared to
testify with knowledge of both Abbott and certain of its wholly-owned subsidiaries and/or
affiliates located overseas, including Fournier. The issue presented by this aspect of
79 In its opposition brief, Abbott represents that, at some point after the acquisition, "Fournier
engaged certain of the undersigned counsel to represent it in conjunction with the completion of its
compliance with the document subpoena. As counsel repeatedly made clear, the representation of
Fournier was only 'in conjunction with any further response to [Ethypharm's document] subpoena' and
completion of Fournier's responding to the document subpoena was 'the sole respect in which we
represent Fournier who is not a party to this action.'" D.1. 125 at 6 (alteration in original) (quoting D.1. 128,
Ex. C). Abbot responds that Fournier's engagement of "one of Abbott's counsel of record to represent it in
conjunction with Fournier's document production ... does not change the fact that Abbott has asserted
control over Fournier document production in this case. While it may be true that both Fournier and
Abbott have retained one of Abbott's law firms, it was Abbott's other counsel that received the documents
transferred from Fournier, and Abbott attorneys represented to this Court in May 2010 that Abbott was in
control of Fournier's document discovery efforts." D.1. 129 at 3 n.1 (emphasis in original).
80
0.1. 125 at 2 (emphasiS in original).
20
Ethypharm's motion is the duty of a corporate parent to produce a Rule 30(b)(6) witness
In support of its motion to notice a Rule 30(b)(6) witness, Ethypharm again relies
on Twentieth Century Fox. Although that case did not support Ethypharm's argument
to depose certain individual's pursuant to Fed. R. Civ. P. 30, its reasoning is more
compelling when considering Ethypharm's Rule 30(b)(6) request. To wit, the court's
statement that the scope of the entity's obligation in responding to a 30(b)(6) notice, to
Rule 34 is the same. The entity "must produce a witness prepared to testify with the
knowledge of the subsidiaries and affiliates if the subsidiaries and affiliates are within its
control."81
In its analysis, the court stated that a Rule 30(b)(6) designee presents the
corporation's, rather than his personal, "position" on a topic and, in addition to testifying
about facts within the corporation's knowledge, testifies about the corporation's
subjective beliefs and opinions, and its interpretation of documents and events. 82 Not
Rule 30(b)(6) notice is obligated to prepare its witness with both the entity's own
knowledge and the knowledge of its subsidiaries and affiliates," the court compared "the
821d. at *3.
831d.
21
With regard to a corporation responding to interrogatories, it "must provide not
only the information contained in its own files and possessed by its own employees, it
must provide all information under its control."84 Therefore, when a parent is
responding to interrogatories, "'it is no defense to claim that the information is within the
controlled by such interrogee."'85 The court found that the "same principle applies to
requests for documents pursuant to Rule 34" which "requires a party to produce
concluded that a parent corporation has a sufficient degree of ownership and control
over a wholly-owned subsidiary that it must be deemed to have control over documents
As a result of its comparison of the discovery obligations under those rules, the
84/d.
8s/d. (quoting Westinghouse Credit Corp. v. Mountain States Mining & Milling Co., 37 F.R.D. 348,
349 (D. Col. 1965).
86 /d. at *4 (quoting Fed. R. Civ. P. 34(a».
87/d. (quoting Dietrich v. Bauer, 95 Civ. 7051 (RWS), 2001 WL 1171132, at *3 (S.D.N.Y. Aug. 16,
2000».
22
with the basic issues and facts disclosed to the fullest practicable extent,,88
The court concluded that because the evidence demonstrated that the parent
company controlled the subsidiary in question, the parent was required to provide a
witness with knowledge of the subsidiary to testify concerning the documents at issue. 89
primarily relies upon In re Ski Train Fire,90 where the court declined to follow Twentieth
Century Fox. There, the plaintiffs noticed a Rule 30(b }(6) deposition of a litigant on
certain topics. The court stated that it was clear that the employees most
Notably, the court stated that there was no evidence that the parent litigant was
involved in the topics sought to be explored in the Rule 30(b)(6} deposition.92 The court
8ald. (alteration in original) (quoting United States v. Procter & Gamble Co., 356 U.S. 677, 682
(1958».
89 Id. at *5. Abbott discounts Twentieth Century Fox. It pOints to the Advisory Committee's Notes
statement that Rule 30(b)(6) would "curb the 'bandying' by which officers or managing agents of a
corporation are deposed in turn but each disclaims knowledge of facts that are clearly known to persons in
the organization," Advisory Committee Notes to the 1970 Amendments to Rule 30, subdivision b(6), and
argues that Twentieth Century Fox is a classic "bandying" case and that this case does not present a
similar situation. Regardless of the differing factual setting between that case and the case at bar, the
court finds the conclusion of the Twentieth Century Fox case concerning the discovery obligations of rules
discussed therein to be persuasive. In a footnote, Abbott also makes the statement that "Fournier
documents have been produced, so Ethypharm already has the knowledge of Fournier to the extent that it
is contained in the documents." 0.1. 125 at 15 n.3. If Abbott is arguing that production of Fournier
documents is sufficient to obviate the need for a Rule 30(b)(6) deposition, such argument is without merit.
See, e.g., In re Vitamins Antitrust Litig., 217 F.R.D. 229, 233 (D.D.C. 2002) (The court rejected the
argument that because a company had already produced documents relating to an issue "'known or
reasonably known to' [the company] ... 'requiring [the company] to provide an additional 30(b)(6) witness
at all, at this late stage in the litigation, would serve no useful purpose.'" The court stated that the
defendant "seems to rely on what might be called the substitution theory of discovery-that a defendant can
respond as it sees fit rather than as requested by the plaintiffs. The argument has no merit. Plaintiffs,
under Rule 30(b)(6), are entitled to an educated witness who can testify as to facts that are known or
reasonably available [to the defendants] about the [issue].").
90 No. MOL 1428(SAS)THK, 2006 WL 1328259 (S.D.N.Y. May 16,2006).
91 Id. at *9. That subsidiary had previously been dismissed as a defendant in the case because of
insufficient jurisdictional contacts with the district in which the suit was brought. Id. at *1.
921d. at *9.
23
concluded that, "on the facts of this case, the Court will not adopt the holding in
The court did not detail why, or if, it disagreed with the reasoning of the
determining the scope of interrogatory responses. It did note that the parent
corporation was not involved in the Rule 30(b)(6) topics and declined to authorize such
deposition "on matters in which the parent was not involved." Here. to the contrary,
Abbott was involved in the matters about which Ethypharm seeks information, for
example the Reliant litigation settlement agreements and the infringement counterclaim
involvement with Abbott in the alleged misconduct that is central to this case ...."95
Indeed, Abbott affirmatively states that "[t]his litigation arises from the settlement of a
previous lawsuit filed in this Court," the Reliant litigation, in which "Reliant named Abbott
Ethypharm also cites S. C. Johnson & Son, Inc. v. Dial Corp.97 There, the
96 D.I. 125 at 3.
24
plaintiffs filed a patent infringement suit and subpoenaed a third party to produce a
witness to testify at a Rule 30(b)(6) deposition. 98 The subpoenaed third party owned a
subsidiary that had a contract with the defendant for the products at issue. 99 The
deposition.10o The parent sought to quash the subpoena, arguing that its subsidiary
was a separate legal entity over which it did not exercise direct, day-to-day control, and
noting that their were eight degrees of ownership separation between it and the
subsidiary.101 In response to the motion to quash, the plaintiffs noted that the subsidiary
in question was, ultimately, wholly owned by the parent, that the subsidiary's profits
were included on the parent's SEC filings, that the parent had produced documents
from the subsidiary in this case, and that the parent's counsel admitted that it would
likely be able to exert sufficient control over its subsidiary to produce one or more
witnesses if necessary.102 Responding to the argument, also made in Ski Train Fire,
that the parent should not have to acquire all the knowledge of its subsidiary regarding
events in which the parent and its employees did not participate, the court noted that
"this argument seems to assume that [the parent] must designate one of its own
expressly contemplates the designation of 'other persons who consent to testify on [the
entity's] behalf."'103
98 Id. at "'1.
991d.
100 Id.
1011d.
1021d.
25
As in S. C. Johnson & Son, Abbott wholly owns Fournier, Abbott incorporates
Fournier's financial results in its consolidated disclosures with the SEC, and Abbott's
counsel of record has been involved in Fournier's document production in this case.
Moreover, as noted above, unlike the parent company in S.c. Johnson & Son, Abbott
was involved in the matters about which Ethypharm seeks information. These facts, as
well as those recited above, demonstrate Abbott's ability to exert legal control over
V. CONCLUSION
For the reasons stated above, it is ORDERED ADJUDGED and DECREED that
Fournier is GRANTED.
104 The court notes that Abbott did not respond to Ethypharm's citation of S. C. Johnson & Son and
its related argument based thereon. Cf. Murphy v. Kmart Corp., 255 F.R.D. 497,508-09 (The court stated
that the facts before it were different than those in S. C. Johnson & Son, Twentieth Century Fox, and In re
Ski Train in that the plaintiff sought a Rule 30(b)(6) deposition wherein the defendant was "to designate
witnesses to speak about its parent corporation ... and sister corporation ... both non-parties to [the]
suit." The court noted that "although it is often the case that discovery disputes center around the parent
corporation acquiring information in the custody of its subsidiaries, this does not preclude a subsidiary
from gaining control over information in the possession of its parent." The court stated that "the issue is
whether [the subsidiary litigant] has sufficient control over or access to [its parent and sister corporations]
to be charged with the knowledge of these entities," and determined it did. Finally, the court noted that
"[the subsidiary litigant] need not designate one of its own employees to provide testimony regarding these
other entities, but rather could designate any person or persons most familiar with the designated topics.").
26
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